Abstract

Constituent power is an idea with a long tradition in modern political thought but has been largely abandoned since the middle of the twentieth century. Here I offer a new account of constituent power that avoids problems of the classical account, including the paradox of constitutionalism, and clarifies how individuals contribute to creating their shared political order. I argue that constituent power should be understood as an individual power-with: the agential power to constitute a legal order with others. Our individual, banal acts of law-abidingness each partially effect the collective outcome. We generally exercise constituent power unconsciously and automatically, guiding our actions to succeed as defined by law and relying on the legal system to take up our contributions and effectively combine them with others.